Chapter 51: Secretly Recording Conversations

[1] CAL: Pen. Code§§ 630
et seq. NOTE: The following laws are not applicable
to the secret recording of conversations:

California Electronics Communication Privacy Act (CalECPA):
CalECPA does not restrict these types of operations because its
stated objective is to restrict when and how officers can compel
an electronics communications provider to disclose private
communications or data pertaining to such communications. See Pen.
Code§§ 1546 et seq.; Ops.Legis.Counsel SB 178 ["This
bill would prohibit a government entity from compelling the
production of or access to electronic communication information or
electronic device information without a search warrant." (Edited).

Wiretap law: A wiretap order is not required when, as here,
one party to the conversation consents. See Pen. Code§
632(a); 18 USC 2511(2)(a)(iii)(c) ["It shall not be unlawful under
this chapter for a person acting under color of law to intercept a
wire, oral, or electronic communication, where such person is a
party to the communication or one of the parties to the
communication has given prior consent to such interception."].

Fourth Amendment: The Fourth Amendment does not restrict
these operations because a suspect who speaks on the phone with
anyone (except his attorney) cannot reasonably expect that the
other party will not reveal the contents of the conversation to
the police, and the recording of the conversation "merely
corroborates or assures the accuracy of the confidant's later
testimony." P v. Phillips (1985) 41 C3 29, 52.
ALSO SEE: US v. White (1971) 401 US 745, 752 ["If
the law gives no protection to the wrongdoer whose trusted
accomplice is or becomes a police agent, neither should it protect
him when that same agent has recorded or transmitted the
conversations which are later offered in evidence."].

[2] OTHER: US v. Griggs (8C 2022)
__ F4 __ [2020 WL 7079136] [not a wiretap because "the
investigator was a party to the conversation," citing 18
U.S.C.§ 2511(2)(c).].

[3] CAL: Pen. Code§§ 633.

[4] CAL: Pen. Code§§ 633, 633.5.
NOTE: The parent of a juvenile victim may record electronic
communications conversations between the suspect and the victim
even though the victim was unaware of the recording.
In re Trever P. (2017) 14 CA5 486, 503 ["The requirements
of the consent exception can be satisfied when a parent gives
consent on behalf of a minor child based on an objectively
reasonable belief that the recording will produce evidence of an
enumerated crime and that the recording is in the best interest of
the child."].

[5] CAL: P v. Guzman (2019) 8 C5
673, 677.

[6] CAL: Pen. Code§ 632 [CalIPA
does not limit its scope to audio recording]. ALSO SEE:
US v. Wahchumwah (9C 2013) 710 F3 862, 866-68;
US v. Thompson (7C 2016) 811 F3 944, 949 ["once Thompson
invited the informant into the apartment, he forfeited his privacy
interest in those activities that were exposed to the informant"];
US v. Brathwaite (5C 2006) 458 F3 376, 379-81;
US v. Davis (2C 2003) 326 F3 361, 364-67.

[7] CAL: P v. Henderson (1990)
220 CA3 1632, 1644 ["The rule in Katz has been held to be
inapplicable to situations… where an informant is present
and wired for sound"]. 9th CIR: US v. Nerber (9C
2000) 222 F3 597, 604 ["once the informants left the room,
defendants' expectation to be free from hidden video surveillance
was objectively reasonable"]. OTHER:
US v. Brathwaite (5C 2006) 458 F3 376, 380 ["Once
Brathwaite invited the CI into his home, he forfeited his privacy
interest in those activities that were exposed to the CI."];
US v. Lee (3C 2004) 359 F3 194, 202 ["the cases involving
consensual monitoring do not apply if recordings are made when the
cooperating individual is not present"];
US v. Laetividal-Gonzalez (11C 1991) 939 F2 1455, 1462
["Any conversations recorded when [the informant] was absent from
the office would not have been admissible evidence"].

[8] CAL: Pen. Code§ 633.8.
NOTE:
Why does the law require post-interception warrants? In
addition to CalIPA, CalECPA arguably also regulates the use of
electronic devices to secretly intercept and record communications
between the captor, his accomplices, and his hostages. This is
because CalIPA does not permit officers to utilize an electronic
device to eavesdrop on a "confidential communication" unless all
parties to the communication consented. See Pen. Code§
632(a). And because it is impossible to obtain the captor's
consent to "secretly" record his conversations, it was suggested
these practices violate the privacy rights of the barricaded
suspect, his accomplices, and maybe even their captives. At first,
these concerns were not taken seriously because these situations
necessarily constitute an exigent circumstance. But because the
CalECPA did not expressly contain an exigent circumstances
exception, the California Legislature revisited the issue a few
years later and passed Pen. Code§ 633.8 which was intended to
"provide law enforcement with the ability to use electronic
amplifying or recording devices to eavesdrop on and record the
otherwise confidential oral communications" of barricaded suspects
and people who are holding hostages. So the problem was solved,
and the secret interception of such conversations is now legal.
But, unfortunately, the story does not end there. In its attempt
to protect the "privacy rights" of barricaded suspects and
hostage-takers, the Legislature also devised an excessively
complex and overwrought procedure that officers must follow after
the emergency has been defused. Specifically, it requires
that—within 48 hours after the start of the operation—officers
must file a written application and affidavit with a judge, asking
the judge to approve or disapprove of the police action that had
already occurred. Furthermore, the Legislature decided to make its
new application procedure excessively burdensome by requiring that
officers obtain an eavesdropping warrant that is tantamount to a
wiretap order; i.e., a standard search warrant is insufficient.
But there is more: The only person who can file an application for
a wiretap is a person who has been expressly "designated" to do so
by the Attorney General of California or the elected District
Attorney of the county in which the operation occurred. This seems
like an especially absurd requirement because it means that, in
all other emergency situations in which lives are in jeopardy, the
officers in the field are permitted to exercise their judgment as
to the existence of probable cause and exigent circumstances. But
if the matter involves a barricaded suspect, the only officers who
can make these calls are officers who had been "designated" to do
so by some of the highest ranking people in our criminal justice
system. Lastly, what happens if the judge refuses to issue the
wiretap order? Nobody knows because a violation of the procedure
cannot result in the suppression of evidence. See Pen. Code§
633.8(l). And although the hostage-taker could theoretically file
a civil lawsuit, claiming that officers violated his right to hold
hostages in private, such a lawsuit—much like the statute
itself—would not reflect well on our system of justice.

[8] USSC: Lanza v. New York (1962) 370 US 139, 144.
CAL: Pen. Code§ 636. NOTE: Inmates are, of
course, aware of this restriction and sometimes attempt to exploit
it. For example, in US v. Amen (2C 1987) 831 F2 373 the
defendants, who were selling heroin in prison, utilized a code in
which a "lawyer" was one of the heroin sellers, and "going to
court" meant a heroin transaction.